The mechanics of the stealth layoff: informing the associate (Part 2)

Today, we continue our discussion of the mechanics of the stealth layoff. After the partnership has established a firm, iron-clad written record of the associate’s poor performance, it is prepared to move forward in informing the associate of the impending layoff.

Depending on the situation, a firm will sometimes attempt to “wean” the associate from work prior to an actual notification. Other times, due to the state of the economy or other reasons, the targeted associate may have little work. In fact, if that associate really does perform poorly and deserves to be laid off, it’s very likely that he or she has been struggling to find work for an extended period of time. Either way, if the associate has little to no work, this situation allows the partnership a favorable opportunity to inform the associate of the layoff and quickly have the associate depart within days.

The more interesting scenario is when–for reasons too complex to discuss in this post–an associate is laid off based on largely fabricated reasons. It’s well-known that during tough economic times, firms attempt to preserve their reputation by performing stealth layoffs that are ostensibly “performance-related” but really are driven by low business revenues. The irony of this situation is that an associate who is in fact quite productive may be laid off with a group of other associates in anticipation of a worsening economic situation (and partners looking to protect their quarterly profits). In this situation, the firm is left in the rather awkward position of informing an associate of an impending layoff but still keeping that associate around long enough to properly transition all of his or her cases. It’s not a situation that the partnership relishes, so it’s a lot easier to inform an associate of a layoff if he or she is not busy. Instinctively, this also explains why associates always attempt to “protect” their jobs by keeping themselves as busy as possible during tough economic times. The more indispensible an associate can appear, the more reluctant the firm will be in delivering the axe.

When the axe does arrive, it usually does so in the form of a “meeting” with two partners. Sometimes, it’s done during the annual associate review; other times, it is done so during a “performance evaluation” that is not part of the associate review. Other times, it’s simply characterized as a meeting.

There are several reasons why two partners are usually involved instead of one. First, there is strength in numbers. No partner wants to be the one to inform an associate that he or she is being laid off. It’s uncomfortable and an aspect of a partner’s job that is undesirable. Having another partner present dilutes the responsibility associated with the layoff. Second, partners want to present a united front. It makes it symbolically a “firm” decision, when there are times the layoff is prompted or catalyzed by one primary partner. (There are of course times when a mass layoff is engineered from the very top, but this is not always the case.) Third, to the extent that a future lawsuit is filed by the associate against the firm, the partnership can have corroborating witnesses at trial to impugn the associate’s testimony of the conversation that takes place.

The conversation itself almost always takes place in a partner’s office. This is designed–consciously or sub-consciously–to create an unequal playing field. When the associate is called into the partner’s office, there is a clear sense of a power disparity. In some cases, the conversation may take place in a more neutral zone such as a conference room. But it never takes place in the associate’s office.

The substance of the conversation is based on the written record that has been prepared. It’s reminiscent of the final court scene from A Man For All Seasons, where Thomas More eloquently (and with futility) argues with moral and legal persuasive force why he should not be convicted of high treason against King Henry VIII. During this conversation, the partnership will set forth the “charges” against the associate, and ostensibly provide the associate an opportunity to respond to the charges. It’s all a theatrical performance whose outcome has been preordained.

At the end of this week, we wrap up this three-part mini-series by discussing the “stealth” in stealth layoffs.